Transportation watchdog must revisit air passenger obesity complaint

The Supreme Court of Canada ruled 6-3

Gabor Lukacs is seen at home in Halifax on Thursday, Jan. 23, 2014. The Supreme Court of Canada says a federal transportation watchdog was too hasty in dismissing a consumer advocate's complaint on behalf of obese airline passengers.Andrew Vaughan / THE CANADIAN PRESS

OTTAWA — A federal transportation watchdog must take a fresh look at a consumer advocate’s complaint on behalf of obese airline passengers, the Supreme Court of Canada says.

In a 6-3 decision Friday, the high court said the Canadian Transportation Agency failed to reasonably exercise its discretion in dismissing Gabor Lukacs’s grievance about Delta Air Lines.

Lukacs, a mathematician with an interest in the rights of Canadian air passengers, lodged a complaint in August 2014 alleging Delta’s practices discriminated against “large” people.

He cited an email from a Delta customer care agent responding to a concern raised by a traveller known as Omer about a fellow passenger who required additional space and who therefore made Omer feel “cramped.”

In the email, Delta apologized to Omer and set out the guidelines it follows to ensure that large passengers and people sitting nearby are comfortable.

It said Delta sometimes asks the large passenger to move to a location in the plane where there is more space. If the flight is full, the airline may ask the passenger to take a later flight. In addition, Delta recommended that large passengers purchase additional seats, to avoid being asked to rebook and ensuring the airline can guarantee comfort for all.

The agency rejected Lukacs’s complaint on the basis he lacked standing to make arguments, either as someone directly affected or in the public interest.

Deference requires that we let the agency determine for itself how to use its discretion, provided it does so reasonably

It noted Lukacs himself was not obese, and therefore couldn’t claim to be affected. The agency found he did not have public interest standing because his complaint didn’t challenge the constitutionality of legislation or the illegal exercise of an administrative authority.

Lukacs successfully challenged the decision in the Federal Court of Appeal, which ruled in 2016 that the transportation agency relied on overly narrow grounds — akin to those applied by courts — to deny him standing.

The appeal court ordered the transportation agency to reconsider whether to investigate the complaint, examining factors other than standing. The order prompted Delta to take its case to the Supreme Court.

Delta gained some ground in the decision Friday, as the Supreme Court directed the transportation agency to consider all issues — including the question of standing — when it revisits Lukacs’s complaint.

The agency might also look at whether the complaint is in good faith, timely, vexatious or in line with its workload and priorities, suggested Beverley McLachlin, who was chief justice when the case was heard and penned reasons for the decision on behalf of the majority.

McLachlin recently retired from the court but will have input until mid-June into cases in which she was involved.

The transportation agency might also wish to consider whether the complaint is based on sufficient evidence or raises a serious issue, she wrote.

“Deference requires that we let the agency determine for itself how to use its discretion, provided it does so reasonably.”

Writing in dissent, Justice Rosalie Abella said it was appropriate for the agency to apply the same standing rules as those used by courts. “Put colloquially, if it’s good enough for the courts, it’s good enough for tribunals.”

In addition, Abella said Lukacs wanted to engage the agency “in a fishing expedition” based on a complaint “with no underlying facts, no representative claimants and no argument.”